State appeals from the trial court's order granting
Nathaniel Willie Wilkins' pretrial motion in limine to
exclude incriminating statements made by his co-defendant
Michael Dontaa Jones with regard to a 2013 double murder. The
trial court held that some of the statements, while made by a
co-conspirator, were not made "in furtherance of the
conspiracy" and thus did not fall within the exception
to the hearsay rule provided by OCGA § 24-8-801 (d) (2)
(E). Because the trial court did not abuse its discretion in
so doing, we affirm.
and Jones were indicted by a Chatham County grand jury for
malice murder, felony murder, and aggravated assault arising
from the execution-style shootings of Forrest Ison and Alice
Stevens at their home in Thunderbolt, Georgia. Jones'
case was severed from that of Wilkins, and he was tried in
April 2016 and found guilty on all counts. Most of the
statements complained of here were admitted into evidence at
Jones' trial. The State expects the evidence to show
that Wilkins, Jones, and Tracy Burgess, the driver of the
getaway car,  attempted to avoid arrest after the
murders by hiding in the homes of friends and family members
in Georgia and South Carolina. During that time, Jones
allegedly made a number of incriminating statements to
(1) A witness who worked with Jones testified at his trial
that Jones displayed a pistol in his waistband and told the
witness that the male victim got him fired and he and
appellee lay in wait for him, "caught them at their
house and went to rob them . . . [the male victim] went
bucking so he shot him"; his female companion "went
to crying and yelling so we shot that b----
(2)An acquaintance of Jones and Wilkins informed the police
that, while Jones and Burgess were at the witness' home,
Jones stated that he and Wilkins were involved in a homicide.
No sworn testimony appears in the record, and a police report
narrative gives only the gist of the statement, but the State
contends that the witness saw a gun which Jones concealed at
(3)Jones' estranged wife testified before the grand jury
that Jones told her that he "did something
horrible" and "shot somebody." The trial
testimony referenced by the State is not included in the
(4)A police report states that Jones told another witness
that he "got messed up in Thunderbolt." The trial
court noted in its order that this witness did not testify at
Jones' trial, but his expected testimony was provided in
the State's brief.
(5) Another police report states that Jones told Burgess'
stepsister that an attempted robbery failed and that Wilkins
"got cold feet, " so Jones shot the male victim,
and then Wilkins shot the female victim. The trial testimony
referenced by the State does not appear in the record, but
the State contends the witness testified that she was trying
to get to know her stepsister, "but they used me for
something totally different."
(6)Burgess testified at Jones' trial that Jones told her
"he got another body." She also testified, outside
the presence of the jury, that Jones wrote her a letter from
jail instructing her to put the blame for the murders on
Wilkins and a fictitious third party.
trial, Wilkins filed a motion in limine. In an omnibus order,
the trial court excluded these six statements. It held that
statements made outside Wilkins' presence were not in
furtherance of the conspiracy and were not admissible. From
this order, the State appeals.
admission of a co-conspirator's statements is governed by
OCGA § 24-8-801 (d) (2) (E), which provides:
(2) Admissions by party-opponent. Admissions shall not be
excluded by the hearsay rule. An admission is a statement
offered against a party which is: . . .
(E) A statement by a coconspirator of a party during the
course and in furtherance of the conspiracy, including a
statement made during the concealment phase of a conspiracy.
A conspiracy need not be charged in order to make a statement
admissible under this subparagraph.
provision differs substantially from former OCGA §
24-3-5, which stated: "After the fact of conspiracy is
proved, the declarations by any one of the conspirators
during the pendency of the ...